from the plenty-of-examples dept

While AT&T, Comcast, and Verizon have argued -- with incredible message discipline -- that network neutrality is "a solution in search of a problem," that's simply not true.

There are many concrete examples of network neutrality violations around the world. These network neutrality violations include ISPs blocking websites and applications, ISPs discriminating in favor of some applications and against others, and ISPs charging arbitrary tolls on technology companies.

We have seen network neutrality violations all over the world.

Even in the U.S., there have been some major violations by small and large ISPs. These include:

and Comcast's disputes with Level 3 and Netflix over termination fees, and the appearance that Comcast is deliberately congesting its network connections to force Netflix to pay Comcast for an acceptable connection (2010- +today).

In other countries, including democracies, there are numerous violations. In Canada, rather than seeking a judicial injunction, a telephone ISP used its control of the wires to block the website of a union member during a strike against that very company in July 2005. In the Netherlands, in 2011, the dominant ISP expressed interest in blocking against U.S.-based Whatsapp and Skype.

In the European Union, widespread violations affect at least 1 in 5 users. That is the conclusion of a report issued in June of 2012 by the Body of European Regulators for Electronic Communications (BEREC), a body composed of the regulatory agencies of each EU country. Most of these restrictions were on online phone services, peer-to-peer technologies (which are used not only by copyright pirates, but also in a variety of well-known technologies, including Skype and several Amazon cloud services), as well as other specific applications "such as gaming, streaming, e-mail or instant messaging service."

ISPs block and discriminate against applications and websites even in countries that require disclosure of the violations and even in countries with far more competition among ISPs than the U.S. A recent Oxford dissertation on the topic explores the wide-scale blocking and discrimination in the United Kingdom, a market with both considerable competition among ISPs and robust disclosure laws.

Essentially, a specific rule that would be upheld in court is necessary protect network neutrality and address a major, global problem.

from the lots-of-ideas,-but-the-will-to-implement? dept

I've been procrastinating for the last week and a half or so (admittedly with a Thanksgiving holiday thrown in the middle) writing up my impressions of the recent conference at Santa Clara University called Solutions to the Software Patent Problem. If you want something of a play-by-play on what happened, Groklaw has a pretty good tick-tock on the specifics. Unfortunately, I'm not sure that really covered some of the larger important themes that the conference brought out.

First off, I know that some patent system defenders took great offense to the idea that the event wasn't "balanced" with system supporters. Nearly every speaker presented an aspect of how the system was broken with suggestions to fix it. But I see this complaint as being misleading. There's this random belief out there that conference panels need to be "balanced" with "pro & con" and then let the panelists argue things out. I've argued against this in the past when setting up panels for other events, and with the events that we run, we've tried to avoid that concept as well. While just setting up pro vs. con can make for an entertaining session, it rarely leads to productive discussions that move the conversation forward. They just lead to people arguing past each other. A productive event is one in which people agree on a basic premise or problem and are then working towards possible responses. That's what this was. It was a conference for those who believe the system is broken. Given that assumption, the point of the event was to suggest possible solutions. There are plenty of events where patent system defenders and skeptics can argue against each other, but I can't think of another where people were able to dig in deep on possible fixes.

Given all that, there were a lot of different ideas proposed -- some broad, some specific. Many of them required people to have pretty deep knowledge of how the system works. For patent system geeks, it was really fascinating -- but for those less aware of the inner workings of the system I could see how the basic play-by-play seems confusing or uninteresting. However, in reality, there were a number of interesting ideas presented on ways to fix various problems, from getting Congress involved to having the courts better adhere to the law to getting the Patent Office to better adhere to rules to increasing maintenance fees to carving out software entirely... and many more. The conference schedule has links to more detailed versions of various proposals, sometimes both the "academic" versions and more "mainstream" versions at Wired Opinion. I'll point to a few of the suggestions I found to be more compelling in a bit.

However, what I found really useful about the event was twofold:

There are a lot of smart people thinking about the very obvious problems of the system, and they are trying to come up with solutions. That's a good thing, even if there are many (powerful) interests who don't want the system to change at all. You can only deny reality for so long.

There are also many ideas for solutions, some of which are quite clever, others of which seem like blunt force attempts to deal with symptoms rather than actual problems. Also, as was raised by some people in the comments, many of the suggestions could have significant unintended consequences that weren't readily considered. This is important -- for as much as I believe that the system needs fixing (and I have my own suggestions for solutions), thinking through the consequences of any change is an important exercise (though always keeping in mind that defenders of the status quo seem to argue any change will destroy the American economy and probably take apple pie and motherhood with it).

We already explored the suggestions from Richard Stallman and Mark Lemley in earlier posts, so we'll look at a few other interesting suggestions.

There was some interest in using patent fees as a way that the patent office might be able to fix some of the worst problems without requiring a change in the law. James Bessen pointed out that bad patents are a form of pollution and, as such should be taxed as polluters. Christina Mulligan pushed back against attempts at doing the opposite, as urged by some patent system defenders, noting that "Cheaper patent applications mean more – and lower-quality! – patents. Lowering filing fees will make more people more likely to file patents. But if the marginal difference in patent fees is holding inventors back from filing applications, the patent is probably covering a low-value invention."

Related to this, Brian Love presented some research and a proposal for using higher fees to decimate trolls. Part of his argument is that the data shows that trolls quite frequently become much more active as a patent is close to expiring: "Of all patent suits litigated within the final three years of the asserted patents' term of protection, trolls file more than 70%. Of all companies accused of infringing a patent within three years of its expiration, trolls accuse more than 83%." His suggestion is that shortening the term length of patents would deal with this problem, and would likely hurt only trolls or failing companies that are lashing out at more innovative competitors (he highlights Kodak and Encyclopaedia Britannica). But rather than actually go through the process of shortening patents, he argues just increasing the maintenance fees to keep a patent for the full term. He notes that many other countries already do something like this. The data here was compelling, though the risk is that it would just mean that patent trolls would become more active in earlier years...

Peter Menell picked up on the point that many have raised that patents aren't at all clear in what they cover. So he thinks that we should force patents to be much clearer in what the claims cover. Specifically, he argues for a form-based system where you have a series of check boxes and pull downs in defining a claim to make it clear what you're actually trying to cover. I like the idea that patents should be much more precise over what they claim, but I'm not sure it's realistic to think that a form would (a) do this well or (b) be properly used.

Arti Rai pointed out that the software crowd probably screwed up years ago, by not doing what the bioinformatics world did in claiming that you can't get a patent unless you provide the actual working algorithm. This seems like something of a no-brainer. The USPTO has regularly rejected bioinformatics claims on the basis of a lack of "definiteness" for not supplying the algorithm. There's no reason that the same couldn't be done in software. Of course, that would require the USPTO to actually notice this point...

I thought John Duffy's proposal was one of the most interesting (and, in the past, I've found myself disagreeing with Duffy more often than agreeing with him) in which he argued the most "elegant" solution to the software patent problem that isn't all that far off from my own suggestion: fix the "non-obviousness" standard by noting that multiple parties simultaneously, independently inventing the same thing is a sign of obviousness and should lead to no patents being allowed. Duffy's presentation was the one that set Richard Stallman off for arguing that Stallman's solution was "kludgey" rather than a full solution. On this one, I side with Duffy. Duffy's solution here would likely be a lot more effective that Stallman's because patent lawyers could easily write around Stallman's solution of not allowing patents on "general purpose" computing.

Samson Vermont highlighted that we should take into account social harm (Word doc). That is, he suggests courts should base remedies on the amount of harm on the public rather than on the harm on the patentee. "More specifically, in cases in which the defendant's infringement clearly makes the world better off, the court should deny the patentee both money damages and injunctive relief." More specifically, he argues that if the patent isn't actually being used to put a product on the market (either by the inventor or a licensee), the accused infringer is an independent inventor and is actually putting a product out there and the "costs to find the patentee's version of the invention beforehand were greater than the defendant's costs to invent it on his own" then courts should reject any awards. As he notes, when all three conditions are met, "it is very hard to come up with plausible reasons to believe that the defendant's infringement is a bad thing."

There were plenty of other presentations, but those were the ones that seemed most interesting and worth thinking about more deeply. As for the biggest waste of time? That award goes to Dan Ravicher, of PubPat, who plays both sides of the patent troll fence. He started off his presentation by haranguing everyone for not showing enough "respect" for the existing system and various people, and then proceeded to yell at everyone in attendance that they "failed" because they didn't raise their hands fast enough when he mentioned various patent troll lawsuits that he didn't think were that problematic. One of his larger points was sound -- that if you want to convince anyone in the government that the patent system is broken you have to focus entirely on "jobs, jobs, jobs." But there's no reason he had to be completely obnoxious in getting that point across. Many of his other points were specious, at best. However, it has set for me a new "Ravicher Rule": if someone starts off a talk by arguing that everyone needs to be more respectful of everyone else, the probability that they will disrespect pretty much everyone quickly approaches one.

Overall, it was a really great and thought-provoking event. I'm happy that there's a lot of detailed thought going into ways to solve the patent trolling problem, though I'd argue we need to be careful not to just think that this is a "software patent" issue. I think the problems of the system apply equally elsewhere -- which is why I like system-wide fixes, such as those suggested by Duffy and Vermont.

And, just to address this one point before one of our regular patent lawyer commenters tries to make it in the comments: there is an argument among patent system supporters that there is no such thing as a "software patent" and thus any argument that uses that term is meaningless. This is both slightly true and (more importantly) a distortion of the larger issue. As was discussed at the conference, there is a difference between software and hardware that can't be denied. One involves moving around bits. One doesn't. So it's not difficult to define software differently from hardware. The real problem is that if we did carve out software from patentability, it's likely that crafty patent lawyers would quickly figure out how to rewrite patent claims to make them broadly cover the same concepts in a way that could be seen as not being "software." Given all that, I think it's quite legitimate to discuss "patents that cover software" as "software patents," even while I agree that merely targeting "software patents" misses the larger problem.

from the a-little-explainer dept

Yesterday I noted that the anti-SOPA/PIPA crowd seemed to have just discovered ACTA. And while I'm pleased that they're taking interest in something as problematic as ACTA, there was a lot of misinformation flowing around, so I figured that, similar to my "definitive" explainer posts on why SOPA/PIPA were bad bills (and the followup for the amended versions), I thought I'd do a short post on ACTA to hopefully clarify some of what's been floating around.

First off, ACTA, unlike SOPA/PIPA, is not "a law." It's a trade agreement, in which a variety of countries agree to deal with intellectual property infringement in a similar fashion. It does have some similarities to SOPA/PIPA -- such as the conflation of counterfeiting physical goods with digital copyright infringement. This is a very common tactic for folks trying to pass massively draconian, expansionary, copyright laws. You lump them in with physical counterfeiting for two key reasons: (1) If you include physical counterfeiting, even thought it's a relatively small issue, you can talk about fake drugs and military equipment that kill people -- so you can create a moral panic. (2) You can then use the (questionable) large numbers about digital copyright infringement, and then lump those two things together, so you can claim both "big and a danger to health." Without counterfeiting, the "danger" part is missing. Without copyright, the "big" part is missing. The fact that these are two extremely different issues with extremely different possible solutions, becomes a minor fact that gets left on the side of the road.

Unfortunately, much of the information and fear-mongering about ACTA is extremely dated. People are asking me why the text of ACTA is hidden away as a state secret. Yes, during negotiations, there was an insane amount of secrecy -- much more than is standard. But the final text of ACTA has been public for quite some time now. We can complain about the process, but saying that the document is still secret is false.

Unfortunately, so much of the focus on ACTA was about the secrecy of the process, and the lack of actual stakeholders being involved (entertainment industry and pharma lobbyists had full access... everyone else? Not so much.), that the actual problems with the agreement have been clouded over. It is worth noting that the final ACTA text was very much improved from what was leaked out early on. In fact, it seems clear that, despite the attempts at secrecy, the fact that the document kept leaking really did help pressure negotiators to temper some of the "worst of the worst" in ACTA.

For example, ACTA initially tried to establish much stronger secondary liability for ISPs, including effectively requiring a "graduated response" or "three strikes" plan for ISPs, that would require them to kick people accused (not convicted) of infringement multiple times offline. One of the key problems with ACTA has been how broadly worded it is and how open to interpretation it is. For an agreement whose sole purpose is supposed to be to clarify processes, the fact that it's so wide open to interpretation (with some interpretations potentially causing significant legal problems) seems like a big issue. For example, while the original draft never directly required a three strikes program, it required some form of secondary liability measures, and the only example of a program that would mitigate such liability was... a three strikes program. To put it more simply, it basically said all signers need to do something to help out the entertainment industry, and one example is a three strikes program. No other examples are listed. Then they could pretend that it doesn't mandate such a program, but leaves little choice for signing countries other than to implement such a thing. However, thankfully, that provision was struck out from the final copy.

So why is ACTA problematic?

While it probably does not change US law (with some possible exceptions, especially in the realm of patents), it certainly does function to lock in US law, in a rapidly changing area of law, where specifics are far from settled. Supporters of ACTA continue to insist that not only does it not change US law, but that it cannot change US law, since it's an "executive agreement" rather than a treaty (more on that later). The reality, however, is that to be in compliance with this agreement, the US needs to retain certain parts of copyright law that many reformers believe should be changed. At the very least, it ties Congress' hands, if we want to be in compliance with our "international obligations."

An example of this is on the question of inducement theory for copyright law. Within copyright law there is direct infringement (you did the infringement) and indirect or secondary infringement (you had a hand in making someone else infringe). In general we should be wary of secondary liability issues, because they can create chilling effects for new innovations. It's why the Supreme Court allowed the VCR to exist, despite the fact that it enabled infringement. Contributory infringement (in which you're more actively involved) has been illegal, but there has been some question about inducing infringement (i.e., leading or pushing others into infringing). There was an attempt by Congress nearly a decade ago, under the INDUCE Act, to make inducement a violation of copyright law, but it failed to go anywhere in Congress. Of course, the Supreme Court then stepped in with its Grokster decision that made up (pretty much out of thin air) a standard for "inducement" to be a violation of the law.

Normally, if Congress decides the Supreme Court got something wrong, it can pass a law to clarify. However, under the terms of ACTA, countries need to consider inducement a violation of copyright law. There's no way to read this other than to tie Congress' hands on the question of inducement. That's a big issue because we're still sorting through the true impact of considering inducement as against the law. I know it's tough to believe Congress could ever push back on ever more draconian copyright law, but with the SOPA/PIPA backlash, there's at least a sliver of hope that some are aware that these issues impact innovation. Should Congress realize that greater liability through inducement is a mistake, under ACTA, their hands are mostly tied if they want to fix it. That's a problem.

Beyond just locking in parts of copyright law, ACTA also expands it. First, it takes things that would normally be considered non-commercial file sharing (which is potentially against the law), and turns it into commercial scale criminal infringement. Similarly, it appears to broaden the definitions around inducement/secondary liability to make what had been a civil (between two private parties) issue into criminal aiding and abetting. Basically, there are parts of ACTA that effectively seek to take what would normally be civil infringements, dealt with between two private parties, and allow the entertainment industry to offload the policing to government law enforcement (paid for by tax payers) and leading to a higher likelihood of jail time.

Copyright law is, by its very nature, a bundle of forces -- some that incentivize good behavior, and some that are bad. There should be no question that copyright has some good effects and some bad effects. The real question is in weighing the good and the bad and making sure that that the bad don't outweigh the good. Often, copyright law has used exceptions (fair use, public domain, de minimus use, first sale, etc.) to act as a "safety valve" in an attempt to make sure the bad doesn't outweigh the good.

However, ACTA pretends that copyright is only good and there's no need to minimize the bad effects. That is, it only talks about the enforcement side, and completely ignores the necessary exceptions to copyright law that make it function. Basically, it exports the punishments from the US, but leaves out the safety valves. That's pretty scary. It may be (well, not really) okay in the US where fair use is clearly established, but most other countries don't have fair use at all (if they have anything, it's a much weaker system known as "fair dealing"). Exporting strict enforcement without exceptions is dangerous and will lead to unnecessary limitations on creativity and speech.

There are serious health risks associated with ACTA, especially in the developing world. In this case, Europe pushed strongly to include patents under ACTA (something the US actually preferred to leave out). This has complicated matters for some countries. Under existing international agreements, countries can ignore pharmaceutical patents to deal with health emergencies. That is, if you have an outbreak and need a drug that pharmaceutical companies are unwilling to supply at a reasonable price, governments can break the patent and produce their own. That becomes much more difficult under ACTA, which could be a real threat to health around the globe.

Similarly, there are very reasonable concerns that ACTA will be used to crack down, not on actual counterfeit medicines, but on "grey market" drugs -- generic, but legal, copies of medicines. Some European nations, for example, already have a history of seizing shipments of perfectly legal generic drugs in passage to somewhere else. For example, say that a pharmaceutical company in India is shipping drugs to Brazil that are legal in both countries. However, those drugs violate a patent in Europe. If, during transit, those drugs pass through Europe, customs agents may seize them. That's already been happening, but the fear is that there's greater power to do so under ACTA.

ACTA presents certain requirements for border patrol agents in determining what is and what is not infringing. This is a big issue for a variety of reasons. First, as we've seen in the US, ICE/border patrol isn't very good at figuring out what is and what is not infringing. Traditionally, there are significant questions of fact to be explored in determining if something is infringing, but under ACTA, border patrol often will be in a position to make a snap decision. Believe it or not, Homeland Security itself was worried about ACTA, because of fears that it would actually make it more difficult to be effective on intellectual property issues -- and might require them to spend more time trying to figure out if something is infringing, rather than if there's a terrorist trying to get into the country.

Again, while ACTA supporters insist that it won't require changes to US law, there are a few parts of ACTA that are so vague that you can definitely see how they could be interpreted to require changes to US law. One key example is where certain kinds of patent infringement cases protect against either injunctions or damages... whereas ACTA would require one or the other.

Even the signing parties don't agree on the purpose, scope and nature of ACTA. This may be the scariest part. Part of the debate in the US is over the USTR and President Obama's claim that ACTA is not a binding treaty, but rather a sole executive agreement that doesn't need Congressional approval. Many believe that this is unconstitutional, and Senator Ron Wyden has asked the President to explain what certainly appears to be a violation of the Constitution. However, over in Europe, they're insisting that it is a binding treaty. The US, on the other hand, has already said that it can ignore anything it doesn't like in ACTA. If you think that's a recipe for an international problem, you get a gold star.

Finally, international trade agreements are a favorite tool of the copyright maximalist. You see it all the time. If they can't pass legislation they want, they resort to getting these things put into international trade agreements, which get significantly less scrutiny. This also allows for two tricks: the first is leapfrogging, where you get each country to implement the laws required by these agreements in slightly different ways, and then push other countries to match (or better yet, exceed) the rules in the other countries to stay in compliance. Then you use those agreements to demand the same thing from other countries to "harmonize" international laws. It's already been admitted that ACTA was done outside of existing structures for IP-related international agreements (like WIPO and the WTO) because a few countries wanted to negotiate it without input from Brazil, Russia, India and China... but the plan has always been to get ACTA approved, and then pressure those other countries to join.

The sneaky part is that once you have some of these "international obligations," it's almost impossible to get out of them. Copyright maximalists love to shout about how we must absolutely respect our "international obligations" on these kinds of treaties, to limit the government's ability to fix copyright law.

All that said, for folks who have just discovered ACTA, it's important to note that this is pretty much done. Many of the countries involved, including the US, have already signed on, and ACTA will go into effect soon (even if the other countries don't sign on). It's a bad agreement, but it's pretty late in the ball game to step in. If the EU can be convinced not to sign, that would be a big deal, but at this late stage, that seems unlikely.

In the meantime, for folks who are just getting up to speed on ACTA, you really should turn your attention to the Trans-Pacific Partnership agreement (TPP), which is basically ACTA on steroids. It's being kept even more secret than ACTA, and appears to have provisions that are significantly worse than ACTA -- in some cases, with ridiculous, purely protectionist ideas, that are quite dangerous.

Not surprisingly, the Senate is poised to try to move forward with PIPA as soon as possible (January 24th). The folks behind this bill have done all of this quite strategically. They knew that there was growing opposition to PIPA, and while an original version of SOPA, by Rep. Bob Goodlatte, was going to try to fix some of the problems with the bill, Rep. Lamar Smith was pressured to take control over the bill (which he did) and made it much, much worse. The thinking here among the lobbyists was that if he made it much worse, and then backed down to PIPA-levels, that already dreadful bill would be seen as a "compromise."

PIPA features a particularly expansive definition of what constitutes a "site dedicated to infringing activities," which can include merely "enabling or facilitating" infringement. How broad this is is uncertain—is merely providing hosting to an infringer enabling infringement? What about indexing links to an infringing site? This is the sort of language that can easily reach too far—we've seen lawsuits and premised on some pretty thin ice so far.

Another huge hole in PIPA is that it allows court orders to issue against any "information location tools" as defined in the DMCA. That sounds a lot like the search engine-directed provisions in SOPA, but the DMCA defines "information location tools" very broadly—to the point where it could easily encompass a simple link. This could subject nearly the whole web to court orders issued through PIPA.

Is SOPA worse?

Even after the manager's amendment, SOPA retains a lot of excesses, pulling in a lot of other types of issues into one big bill—like also including the complexities of trade secret violations, and expanding criminal penalties for streaming (which certainly seemed to upset Justin Bieber, at least).

It also grants blanket immunity to a much wider range of entities who voluntarily decide to cut of suspected infringers. While PIPA restricts immunity to ad networks and payment processors, SOPA adds to this list any ISP, registry, registrar, search engine, bank, or even any advertiser. This puts a large number of potentially powerful intermediaries in an even more powerful position. If Comcast decides it's tired of, say, YouTube.ca taking bandwidth and audience away from cable programming, it can argue that YouTube is "dedicated to infringing activities" and not face any consequences under net neutrality or competition laws. If Google gets upset that eBay.co.uk isn't playing ball with Google Shopping and decides to delist it, it's got a plausible way to escape any lawsuits (to say nothing of unwanted attention from the FTC or the DoJ) for acting anticompetitively.

So to ask whether SOPA is better than PIPA, or vice versa, is a question without a clear answer—a comparison of rotten apples to rotten oranges. They're different enough to defy an up-or-down value comparison, though at base they are similar enough, and similarly bad.

The fact is that both bills are effectively the same thing, with differences at the margin, neither of which is good. Congress and some lobbyists bet the farm on the idea that starting off with a worse bill would allow a bogus "compromise" allowing them to get what they wanted. What I don't think they expected is just how much these bills would get attention and wake up internet users. For now, the strategy by Lamar Smith is to pretend that this opposition isn't real. There's about a month or so left to prove to him that he's wrong -- and it includes making sure that neither SOPA nor PIPA can possibly pass.

from the good-for-them dept

Back when Google first put forth its stalking horse bid for Nortel's patents, the company explained its position by basically dancing around the issue of just how ridiculous patents had become. It made it clear that it was looking to buy the patents for defensive purposes, but couldn't bring itself to really condemn the problems of the patent system. Some patent system supporters have tried to claim that this was actually Google realizing the value of patents.

Of course, to many of us, it demonstrated the exact opposite. Google was demonstrating the ridiculousness of the patent system by showing that it was ready to pay billions not for the "innovation," but to avoid wasteful lawsuits. Of course, in the end, the patents went to a coalition of companies that didn't include Google, and it seems likely that we'll start seeing them in litigation pretty quickly. Even then Google was pretty quiet about its opinion on patents.

That seems to be changing. The company's General Counsel spoke with TechCrunch's MG Siegler and finally seemed willing to say what's widely known in Silicon Valley: that patents do the opposite of encouraging innovation and they represent a tremendous tax on innovation:

"A patent isn't innovation. It's the right to block someone else from innovating... Patents are government-granted monopolies... We have them to reward innovation, but that’s not happening here."

Nothing exactly earth shattering, but it's nice to see Google finally willing to come out and state the obvious, rather than holding back. Now, if only our elected officials would listen.

from the urls-we-dig-up dept

Solving really tough problems is a more collaborative process than it used to be. Luckily, it's getting easier for a wide variety of people to come together and work on these difficult challenges. Here are a few prizes looking for creative people to produce some really cool solutions.

from the seems-like-a-no-brainer dept

For many years, we've been reporting on stories of e-voting malfunctions, mainly from Diebold/Premier, ES&S and Sequoia. For a sampling of such stories click on any of the following links: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25. And that's just the first 25 I found (there are lots more), and only cover stories that I actually covered. I'm sure plenty more glitch-infused elections have happened. Given all these glitches and errors, and a seeming lack of followthrough to make sure they don't happen again, a group is asking Congress to authorize a public national database of e-voting election problems.

The really scary part is that the researchers who wrote the report note that many of the problems are repeats -- a problem happens in one location, but another voting district uses the same machines configured in the same problematic way in another election, totally unaware of the problems it will cause. It's still amazing that after nearly a decade of examples of problems with e-voting, just how little has been done to fix these machines.

from the reviewing-acta dept

With ACTA finally being officially "released" back in April, the Program on Information Justice and Intellectual Property, at American University's Washington College of Law, brought together a ton of actual stakeholders and experts last week to discuss what the draft actually said -- and found severe problems with it. Together, they put together a draft letter for signatures, which they plan on releasing on Wednesday of this week. The current draft reads as follows:

This
DRAFT statement reflects the conclusions reached at a meeting of over 90
academics, practitioners and public
interest organizations from five continents gathered at American
University Washington
College of Law, June 16-18, 2010. In the days following the meeting, the statement received the individual and organizational endorsements listed below, and is still open for further endorsements at www.pijip.org

The meeting, convened by American
University's Program on Information Justice and Intellectual Property,
was called to analyze the official text of the Anti-Counterfeiting
Trade Agreement (ACTA), released for the first time in April, 2010,
after years of secretive negotiations. The text was released in the
context of public criticism of the process and presumed substance of
the negotiations (see Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations). Negotiators claim that ACTA will not harm significant public interests.

We find that the terms of the agreement threaten numerous public interests, including nearly every concern
specifically disclaimed by the negotiators in their announcement.

The proposed agreement is a deeply flawed product of a deeply flawed process.

What
started as a proposal to coordinate customs enforcement offices has
morphed into a massive new international intellectual property (IP) and
internet regulation with grave consequences for the global economy and
governments' ability to promote and protect public interests.

Any
agreement of this scope and consequence must be based on a broad and
consultative process and reflect a full range of public interest
concerns. As detailed below, this text fails to meet these standards.

Recognizing
that the terms of the agreement are under negotiation, a fair reading
of the proposed text as a whole leads to our conclusions that ACTA:

THE INTERNET-Encourages internet service providers to police users of the internet without adequate court oversight or due process;

FREE TRADE AND ACCESS TO MEDICINES
-Disrupts the free trade in legitimate generic medicines and other
goods, and sacrifices the foundational principle that IP rights are
territorial, by
requiring customs authorities to seize goods in transit countries even
when they do not violate any law of the producing and importing
countries;

-Does
little or nothing to address the problem of medicines with insufficient
or wrong ingredients as the majority of these are not IP but regulatory
system problems.

-Extends the powers of custom officials to search and seize a wide
range of goods, including computers and other electronic devices, without
adequate safeguards against unwarranted
confiscations and privacy invasions;

-Extends
'ex officio' border search and seizures from willful, commercial scale
trademark
counterfeiting to a broad range of intellectual property infringements,
including "confusingly similar" trademark violations, copyright
infringement standards that require interpretation of "fair use" or
similar user rights, and even to patent cases which frequently involve
complex questions of law and fact that are difficult to adjudicate even
by specialist courts after full adjudicative processes;

FUNDAMENTAL RIGHTS AND FREEDOMS-Will
curtail full enjoyment of fundamental rights and liberties, including
rights to privacy and the protection of personal data, health, access
to information, free expression, due process and presumptions of
innocence, cultural participation, and other internationally protected
human rights;

SCOPE AND NATURE OF IP LAW-Distorts the balance fundamental to IP law between the rights and
interests of proprietors and users, including by

introducing very
specific rights and remedies for rights holders without correlative
requirements to provide exceptions, limitations, and due process
safeguards for users;

shifting
enforcement from private civil mechanisms to public authorities and
third parties, including to customs officials, criminal prosecutors and
internet service providers -- in ways that are likely to be more
sensitive to proprietary concerns and less sensitive to user concerns;

omitting liability and disincentives for abuses of enforcement processes by right holders; and

requiring the adoption of automatic damages
assessments unrelated to any proven harm;

-Alters the traditional and constitutionally mandated law making processes for IP by:

locking
in and exporting controversial
aspects of US and EU enforcement practices which have already proven
problematic, foreclosing future legislative improvements in response to
changes in technology or policy;

requiring substantive changes to intellectual property laws of a
large number of negotiating countries.

INTERNATIONAL TRADE AND DEVELOPMENT-Will
disproportionately harm development and social welfare of the poor,
particularly in developing countries, including through raising
unjustifiable trade barriers to imports and exports of needed medicines
and other knowledge embedded goods;

-Conflicts
with the World Trade Organization Doha Declaration on TRIPS and Public
Health and World Health Assembly Resolution 61.21 by limiting the
ability of countries to exercise to the full flexibilities in the TRIPS
agreement that can promote access to needed medicines;

-Circumvents
and undermines the commitments agreed to under the World Intellectual
Property Organization development agenda, particularly recommendation
45 committing to "approach intellectual property enforcement in the
context of broader
societal interests and especially development-oriented concerns," and
"in accordance with Article 7 of the TRIPS
Agreement";

INSTITUTIONAL ISSUES-Creates a new and
redundant international administration for IP issues outside of WIPO or
the WTO with broad powers but limited transparency, threatening
multilateralism in international IP norm setting;

-Encourages
technical assistance, public awareness campaigns, and partnerships with
the private sector that appear designed to promote only the interests
of IP owners;

CONCLUSIONS ABOUT THE DEMOCRATIC PROCESS

The current process
for considering public input into ACTA is fundamentally flawed in
numerous respects. In many countries, the only consultations taking
place are with select members of the public, off-the-record and without
benefit of sharing the latest version of the rapidly changing text.
There is little possibility that a fair and balanced agreement that
protects and promotes public interests can evolve from such a distorted
policy making process.

Governments, right holders and civil society should have an open
and evidence-based discussion on the right strategy to confront
willful commercial scale trademark counterfeiting and commercial scale copyright piracy. This discussion should
take place in multilateral and national open and on-the-record forums with access to current negotiating text so that all
interested stakeholders can participate.

They are looking for signatures to include on the document before it is released on Wednesday. If you agree with what the document says, feel free to follow the instructions on the site to add your name to the list. Will it actually have any impact? Who knows, but it's about time that those who have been blindly supporting ACTA realize that the concerns here are legit, and weren't all wiped away just because the government released the document.

"Institutions will try to preserve the problem to which they are the solution."

Kelly calls this the "Shirky Principle." To me, it calls to mind Upton Sinclair's famous line:

"It is difficult to get a man to understand something, when his salary depends upon his not understanding it!"

They are not the same point, but they are related. In both cases, these are situations where people will often seek to preserve a problem or a falsehood, rather than recognize that it doesn't need to be that way. There are lots of industries where this is a major issue.

But, of course, the real problem is in how they go about trying to preserve that problem. They will go to great lengths to demonize the solutions. This is why the newspaper industry has, at times, lashed out at Craigslist and Google News -- two operations that have essentially removed problems that the newspaper business used to solve. It's why old school video guys lash out at YouTube or Boxee -- because they have removed problems that television used to solve. And, yes, it's why the RIAA and the MPAA lash out at file sharing apps and services -- because they have removed problems in distribution and promotion, that they used to solve.

from the you-cannot-determine-infringement dept

We already wrote about how the big mess with Google taking down some music blogs showed many of the serious problems with the DMCA, but it also highlights some other important points. It's also a perfect example of why asking third parties to stop infringement, or setting up a three strikes policy, makes no sense at all. Why? Because much of the furor over this was that the takedown notices were sent to music bloggers who had been given the tracks and given authorization by the very same labels that were issuing the takedowns. It was a case of the legal left hand not knowing what the marketing right hand was doing.

And this is a major, major problem with anyone who claims that some third party can "just know" when something is infringing. It's why we saw that Viacom sent takedowns to YouTube on around 100 videos that it had uploaded itself. As the judge properly pointed out in the iiNet case down in Australia, copyright infringement isn't something that you can just know when you see it:

copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright

In effect, Google's takedown system for music blogs is very much like a three strikes policy (though, it's not clear how many strikes there really were). But even when people were posting legitimate music, sent to them directly by the label itself for the purpose of being posted to blogs, after enough strikes were made, the sites were taken down. That would be happening all the time in a world with mandated three strikes policies -- and it's the exact reason why such policies make no sense. They're based on the false belief that copyright infringement is an easy "yes" or "no" decision that can be determined upon seeing it. But what we're discovering in both this situation and in the Viacom situation is that even the copyright holders are really bad at figuring out if something is infringing or not. So why should anyone expect third parties to be able to do a better job?